Shabbos 79

1) THE BORROWER'S CONCERN

QUESTION: According to Rava, the argument between the Tana Kama and Rebbi
Yehudah is whether we write a Shover (receipt of payment of debt) for the
borrower. According to the Tana Kama, a contract is not valid nor has any
use after it was paid back, because the borrower has a Shover, rendering
the contract useless.

RASHI explains that the contract is no longer valuable because the borrower
is not interested in keeping it, even as a bottle-stopper, because he is
afraid that he might lose it and the lender will find it and attempt to
claim the debt another time. Furthermore, says Rashi, even if the lender
does not give the contract back to the borrower after he pays back the
debt, the borrower does not care about it because he has in his possession
a Shover saying that he paid.

Rashi contradicts himself. First, he says that the borrower will go out of
his way to ensure that the lender does not get the contract back (he gets
rid of it completely, not even keeping it for use as a bottle-stopper).
Then, Rashi says that even if the lender has the contract the borrower is
*not worried*, because the lender is obligated to get rid of it. But Rashi
just said that the borrower is afraid that if the lender has the contract,
he will try to claim from him a second time! If the borrower is afraid that
the lender will get hold of the contract, all the more so should he be
afraid if the lender already has it! (MAHARSHA and Acharonim)

ANSWERS:

(a) The MAHARSHA explains that the borrower does not care if the lender has
the contract, because he knows that it is forbidden for the lender to keep
it and thus he will burn it.

(b) This answer is difficult to understand, because if so, when the
contract is in the borrower's hands, why is he so concerned that it not get
into the hands of the lender? It must be because he is afraid that the
lender is dishonest and will try to collect with it again. If so, certainly
he should have this fear when the lender himself is holding the contract!

RASHI (end of DH v'Hacha b'Chosvin) explains that according to Rebbi
Yehudah, who maintains that we do not write a Shover for the borrower, the
borrower has a *legal claim* against the lender to give him back the
contract (and if the lender refuses, he must return the money to the
borrower). Accordingly, when Rashi explains the Tana Kama's opinion (that
we do write a Shover), he means that the borrower has *no legal claim* in
court to get the contract away from the lender. If the borrower argues that
he wants it as a bottle-stopper, the lender can retort that the borrower
does not really want to use it, but wants to destroy it. Since the contract
is of no monetary value to the borrower there is no reason to give it back
to the borrower. If the borrower says that it is of value to him because he
wants to avoid having to pay a second time, Beis Din retorts that if he
wants to avoid having to pay a second time, it is his responsibility to
guard his Shover. He has no right to say that he doesn't want to guard the
Shover but wants to instead destroy the original contract (since the Tana
Kama's opinion is that we write a Shover and give the borrower such
responsibilities).

This is what Rashi means when he says that the borrower does not care if
the lender does not return the contract to him. Granted, he *does* care
emotionally, so to speak, but from a *legal* perspective, he has no claim
in court to force the lender to return the contract to him. The *court*
does not care about giving back the contract to the borrower. (M. Kornfeld)

79b

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